ML20083C532

Answer Opposing Ohio Citizens for Responsible Energy 831125 Motion to Reopen Record on Comstock Issues.Motion Based on Distorted & Incomplete Facts in News Articles

ML20083C532
Person / Time
Site:	Perry
Issue date:	12/19/1983
From:	Glasspiegel H CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20083C535	List: ML20083C532 ML20083C542 ML20083C560
References
NUDOCS 8312230176
Download: ML20083C532 (18)

Text

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'. 00CNETED USHRC December 19, 19.83.. ..

13 EC 22 N0:43

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )

)

THE CLEVELAND ELECTRIC ) Docket Nos. 50-440 ILLUMINATING COMPANY, ET AL. ) 50-441

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(Perry Nuclear Power Plant, )

Units 1 and 2 )

APPLICANTS' ANSWER TO OCRE MOTION TO REOPEN THE RECORD Oli COMSTOCK ISSUES I. BACKGROUND By Motion dated November 25, 1983,1/ Ohio Citizens for Re-sponsible Ener'gy'("OCRE") moved the Licensing Board l to reopen the record on Issue #3, concern-ing CEI's control of its electrical con-tractor, L.K. Comstock Co., for the limited purpose of receiving affidavits to deter-mine whether a hearing should be held con-cerning the recent firing of Comstock QC inspectors. This motion is based on two l

news articles (attached) appearing in the r

( 1/ Motion To Reopen The Record On Comstock Issues, dated l

November 25, 1983 (Motion).

! 8312230176 831219 i PDR G

ADOCK 05000440 PDR f)

Cleveland Plain Dealer on November 19 and

23. These articles tell of two Comstock inspectors, Phillip G. Hendrickson and Gene F. Mathis, who were fired in October under suspicious circumstances. Sources have told OCRE that other inspectors have been recently fired by Comstock as well.2/

The Motion further states:

Because the inspectors are relu,ctant to communicate with intervenors, and since ,

unprofessional conduct of NRC (apparently)

Region III Inspection and Enforcement per- .

sonnel has been alluded to (which dis-couraged Mr. Mathis from contacting the URC with his concerns), OCRE. proposes that the Licensing Board utilize the NRC Office of Investigations (headquarters personnel) as its investigatory arm to question the two inspectors (and others), sccure affidavits from these persons, and in general conduct ,

such investigations into the activities of CEI, Comstock, and the NRC Staff as are necessary for a full and complete record on this matter.3/

2/ Motion at 1.

3/ Motion at 3-4. By Araendment To Motion To Reopen The, Record On Comstock Issues, dated December 8, 1983 (served on December 9, 1983) (Amended Motion), OCRE has raised the allega-tions of a former inspector terminated by another contractor, stating that OCRE now believes that, rather than having OI take affidavits, justice and ex-pediency (footnote omitted) might be better j served by having the Board conduct an in camera exploratory hearing at which Perry workers can, without fear of publicity, re-veal their concerns, under oath, to the Board. All such persons would be Board witnesses [ footnote omitted). This explor-atory hearing would serve to alert the l

Board to issues for consideration in later evidentiary hearings.

Id. at 1-2. Applicants will address the remedies portion of (Continued Next Page)

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By letter to the Licensing Board dated November 30, 1983, 1

OCRE_ submitted a third Plain Dealer article (by the same re-

' porter), dated November 28, 1983, regarding allegations of an-other formers / Comstock inspector, Steve E. Balazs. OCRE's November 30, 1983 letter and attached newspaper story, were 2

filed "in support of" OCRE's Motion To Reopen. OCRE's letter j

states that Mr. Balass' allegations "are similar to the allega-

tions which prompted the 81-19 Investigation [5/] and contrast-1 i- markedly with the testimony of Staff and Applicant presented at the May hearing."

OCRE's Motion is premised entirely upon newspaper accounts, printed before Comstock or Applicants could reasonably investigate the matters covered in the stories. The newspaper accounts thus present distorted and incomplete i

(Continued)

OCRE's request (i.e., the question of holding an open-ended in camera " exploratory" hearing) when Applicants file their answer to OCRE's Amended Motion. Applicants' Answer to OCRE's Motion-To Reopen is limited to the merits of whether to reopen the Issue #3 record based on the published allegations of the three

, former Comstock inspectors.

4/ Ac noted in the November 28, 1983 Plain Dealer article, unlike the the first two inspectors, who were terminated by 1 Comstock, Mr. Balazs " quit his job" with Comstock.

5/ In its Partial Initial Decision (Quality Assurance Conten-tion), LBP , 18 N.R.C.__ (December 2, 1983) (Partial Ini-

tial Decision), at 44-45, the Licensing Board states that the 1- allegations which prompted the NRC's 1981-82 investigation were

"not substantiate [d]."

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versions of the facts relevant to the three inspectors' allegations, and an equally distorted picture of the electrical QA/QC program at Perry. As the attached Affidavits 6/ clearly show, the facts underlying the quoted concerns and charges of the three inspectors provide no possible basis to reopen the Issue #31 record, or to revise the Licensing Board's Partial 'x Initial Decision. Applicants therefore respectfully request l that the Board deny the Motion.

) ..

II.. GOVERNING STANDARDS The tripartite test which CCRE's Motion must satisfy, as recently reiterated by the Appeal Board, is as follows:

(1) Is the motion timely? (2) Does it address significant safety (or environ-mental) issues? (3) Might a different result have been reached had the newly proffered material been considered ini-tially?7/',

The Appeal Board has further stated:

The proponent of such a motion thus has a

" heavy burden." Kansas Gas and Electric Co.

(Wolf Creek Generating Station, Unit No.

I 1), ALAB-462, 7 NRC 320, 338 (1978). A successful movant must provide with its motion more than " bare allegations or simple submission of new contentions."

6/ Affidavit of Richard L. Bower, dated December 19, 1983 (Bower Affidavit); Affidavit of Emanuel Riley, dated December 19, 1983 (Riley Affidavit).

7/ Louisiana Power & Light Company (Waterford Steam Electric Station, Unit 3), ALAB-753, 18 N.R.C. __ (December 9, 1983),

l slip op, at 2; Union Electric Company (Callaway Plant, Unit 1),

ALAB-750, 18 N.R.C. __ (November 29, 1983), slip op. at 3.

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Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 an'd 2),

CLI-81-5, 13 NRC 361, 363 (1981). It is not enough merely to express a willingness to provide unspecified, additional informa-tion in support of the motion at some unknown date in the future. Any supporting marerial should be provided with the motion so that the test for reopening can be meaningfully applied.8/

- The purpose of such a stringent rule is to prevent dissatisfied litigants from seeking to reopen the hearing every time "some new circumstance has arisen, some new trend has been observed, or some new fact discovered." Otherwise, "there would be little hope that the administrative process could ever be con-summated in an order that would not be subject to reopening."9/

Finally, "in examining claims of quality assurance deficiencies, one must look to the implication of those deficiencies in terms of safe plant operation."10/ Even when there are claims of a breakdown in quality assurance proce-dures, the question is whether the procedural breakdowns " raise legitimate doubt as to the overall integrity of the facility i

8/ ALAB-753, slip op. at 2-3.

i 9/ ICC v. Jersey City, 322 U.S. 503, 514 (1944) cited in The l

Cleveland Electric Illuminating Company (Perry Nuclear Power Plant, Units 1 and 2), ALAB-443, 6 N.R.C. 741, 750-1 (1977);

see Union Electric Company (Callaway Plant, Unit 1), ALAB-75CA, 18 N.R.C. __ (December 9, 1983), slip op. at 4.

10/ Union Electric Company (Callaway Plant, Unit 1), ALAB-740, 18 N.R.C. __ (September 14, 1983), slip op. at 2 (emphasis added).

J and its safety-related structures and components. A demonstration of a pervasive failure to carry out the quality assurance program might well stand in the way of the requisite

i. safety finding."11/

\

Under the above principles, OCRE's' Motion must fail. Al-though timely, the Motion's assertions of QA/QC and safety vio-lations are not supported by the facts. The three inspectors have not identified any QA/QC deficiencies that were not al-

. ready properly identified by Comstock's and Applicants' pro-gram, as is evident from Applicants' Affidavits. Neither have the three inspectors pointed to any unsafe plant conditions or ,

pervasive procedural failures. Questions and serious asper-sions raised in the newspaper accounts, and by OCRE, regarding the terminations of Mr. Hendrickson and Mr. Mathis, are com-pletely groundless. Thus, the record, as clarified by Appli-cants' Affidavits supplied herewith,' clearly shows that OCRE's Motion fails to raise a significant safety issue, and that the Motion ~ fails to cast doubt on the Licensing Board's conclusions set forth in the Partial Initial Decision.

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, 11/ Id., slip op. at 2-3 (emphasis added).

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II. THE THREE NEWSPAPER ARTICLES, CONSIDERED IN THE LIGHT OF APPLICANTS' RESPONSIVE AFFIDAVITS, DO NOT PRESENT A SIGNIFICANT SAFETY ISSUE A. Mr. Hendrickson's Allegations Do Not Present Significant Safety Issues The November 19, 1983 Plain Dealer story on Mr.

Hendrickson, entitled " Perry worker fired, sought NRC advice,"

suggests that Mr. Hendrickson was fired for seeking NRC advice regarding " records on steel." The Affidavits of Mr. Bower and Mr. Riley show that Mr. Hendrickson was terminated on the merits, during his training and evaluation period, and prior to being certified to perform inapections.12/ Mr. Hendrickson was not aware of unsafe conditions at the plant. He did have a question regarding marking and separation of Comstock's steel, but the question was repeatedly asked by Mr. Hendrickson, and answered by Comstock supervisors and instructors, and was again asked, and answered by CEI officials, during CEI's meeting with Mr. Hendrickson following the newspaper story. After CEI's ex-planation, Mr. Hendrickson stated that he had no further safety concerns.13/ .

12/ Bower Affidavit, V9-13; Riley Affidavit, V5.

, 13/ Riley Affidavit, 14; see Bower Affidavit, UlO.

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OCRE improperly and incorrectly asserts that Comstock's termination of Mr. Hendrickson "is a severe violation of 10 CFR 50.7 and 42 USC 5851."14/ OCRE's charge, which is withcut the benefit of the facts 15/, is reckless.16/ Mr. Hendrickson did not file a complaint under 42 U.S.C. 5585117/, and thus, the Department of Labor has not even considered the matter of Comstock's conduct under the statute. Similarly, there is no basis for OCRE's assertion that 10 C.F.R. $50.7 has been vio-lated. Applicants understand that the NRC Staff is investigating the allegations raised, and that the Staff has not completed its investigation. OCRE should be willing to await the results of objective investigations into all the facts, before assuming guilt.18/

14/ Motion at 2.

15/ ~OCRE has received no information from Comstock or CEI regarding the termination. We assume OCRE has not even heard Mr. Hendrickson's first-hand account, since OCRE has stated

' that "the inspectors are reluctant to communicate with Interve-nors." Motion at 3.

I 16/ A similar reckless assertion is made by OCRE at page 3 of the Motion, regarding CEI being a possible " accomplice in the commission of illegal activities."

17/ A complaint was required to have been filed by Mr.

Hendrickson with the Wage and Hour Division of The Department of Labor within 30 days after the occurrence of the alleged vi-olation. See 29 C.F.R. 624.3; Bower Affidavit, Attachment 2.

Upon receipt of a complaint, the Department of Labor is obli-

_ gated to notify the person named in the complaint. 29 C.F.R.

524.4. To our knowledge, Mr. Mathis and Mr. Balazs also did not file complaints under 42 U.S.C. 55851.

18/ Applicants' Affidavits show that Mr. Bower treated Mr.

.Hendrickson's request to see the NRC with the proper respect.

(Continued Next Page)

The statutory and regulatory provisions cited by CCRE, protecting employee's contacts with the Nuclear Regulatory Commission, have been fully embraced and implemented by Comstock and CEI at Perry. This should be evident from the unambiguous statement set forth in Attachment 1 to the Bower Affidavit, and by the facts contained in the Bower and Riley 1

Affidavits. There is no basis on the Issue #3 record, as sup-plemented by the Bower and Riley Affidavits, to find "ha-

, rassment," " intimidation, " " retaliation, " or discrimination" by Comstock or CEI.19/

Similarly, there was no rational basis for Mr.

Hendrickson's having " felt verbally intimidated" by Mr. ,

Marino.20/ The brief conversation with Mr. Marino did not

(Continued)

At the same time, Mr. Bower did not permit the request to in-

fluence Mr. Bower's professional judgment, as the senior Comstock Quality Control Manager, concerning Mr. Hendrickson's competencies. It is essential to a sound QA/QC program that managers Ima permitted to evaluate, discipline, and even termi-nate their inspectors on the merits, free from considerations of any contacts which a QC inspector might have, or consider having, with the press or the NRC.

19/ During the Issue #3 hearing, OCRE attempted, without

, success, to use a similar newspaper account to show retaliatory and discriminatory intent by Comstock and CEI. See Tr.

1195-1211, 1839-47. Compare OCRE's statement in its Motion that " Problems of this type had not previously been raised before the Board." Motion at 3. See n.5 supra and accompa-nying text.

20/ Bower. Affidavit, 8; Riley Affidavit, 6.

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involve particular inspection or hardware questions, but was in j the context of a senior Comstock official greeting new inspectors. CEI has encouraged the senicr management in-volvement21/ of Mr. Marino and others from Comstock's corporate i

offices, and they have responded.22/

In short, the facts surrounding Mr. Hendrickson's termina-tion do not indicate any safety ci .aspection problems, and

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fail to substantiate the suggestion that Mr. Hendrickson was

$ ' discharged because he asked to talk to the NRC. Applicants' Affidavits demonstrate that Mr. Hendrickson's allegations were i i fully investigated by Applicants' senior QA/QC officials, and

, that CEI did not substantiate the allegations *.

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i B. Mr. Mathis' Allegations Do Not Present Significant Safety Issues L

j The facts relevant to the November 23,~1983 Plain Dealer

{ interview with Mr. Mathis also do not reveal any unsafe plant conditions or pervasive QA/QC procedural problems at Perry.

The newspaper article contains the serious charge by Mr. Mathis that-there was " daily harassment from production." However, Mr. Mathis did not, while at the plant, or in his meeting with 21/ Cf. Partial Initial Decision at 17 (referring to Appil-cantsT~ senior management involvement as being "a prerequisite to the successful implementation of a nuclear quality assurance program."

No less can be said of Comstock's senior management.

22/ Riley Affidavit, 17.

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CEI following the newspaper story, specify or document the problem, or show that plant safety might have been affected.23/

Moreover, Mr. Mathis' own inspection and persennel records contradict the charge. Mr. Mathis actively identified nonconformances, and was favorably evaluated by his supervisors in this regard.24/ CEI's own findings, base ~d on the close sur-veillance of Comstock before25/, and after2g/, Report No.

81-19, also contradict the charge.27/ The record carefully considered by the Licensing Board also shows that CEI has not hesitated to take escalated enforcement action, including stop work notifications, where appropriate.23/ The Bower Affidavit shows that Comstock, too, has issued a significant number of stop work notifications.29/ Thus, Mr. Mathis' allegations do not provide a basis to question Comstock's or CEI's commitment to a strong, independent QA/QC program. CEI's efforts, through Mr. Shuster (its senior QA/QC. manager), Mr. Riley (the head of 23/ Riley Affidavit, V9.

24/ Bower Affidavit, Vl9.

25/ Partial Initial Decision at 34.

2g/ Id. at 37.

27/ Riley Affidavit, V9. See Partial Initial Decision at 19-21 (regarding the role of CQS in the daily oversight of con-tractors' QA/QC program implementation).

23/ Partial Initial Decision at 35, 37, 44.

29/ Bower Affidavit, Vl9.

. o CQS), and others, to meet with the three inspectors and carefully pursue with them their stated concerns, together with other steps taken in response to the concerns 30/, is further evidence of Applicants' continuing commitment to a sound QA/QC program and a safe plant.

Mr. Mathis also complained in the newspaper article about turnover and poor morale among inspectors. Similar concerns were stated in the newspaper interviews of the other inspectors. Mr. Bower and Mr. Riley acknowledge a period, between September and November 1983, during which turnover nas been significant. However, most of the turnover is fully explained by unusually heavy recruiting from other nuclear plants, and by personnel or salary considerations unrelated to any health and safety issues.31/ The remainder of the turnover is accounted for by the termination of three inspectors, including Mr. Hendrickscn, Mr. Mathis and one other. We have previously discussed Mr. Hendrickson's termination. Mr.

Mathis' termination was also for cause (a persistent temper problem, which is even alluded to, albeit in an ambiguous context, in the November 23, 1983 Plain Dealer story).32/

Thus, Applicants' Affidavits should remove any doubts l

concerning recent terminations and turnover at Comstock.

30/ Riley Affidavit, 3.

31/ Bower Affidavit, 20; Riley Affidavit, H8.

32/ Bower Affidavit, 16; Riley Affidavit, U10.

I

~The inspectors' complaints about poor morale are general, and are not tied to plant safety or inspection issues. Some

! morale difficulties have arisen because of salary concerns and other items unrelated to health and safety concerns.33/ In addition, the exceedingly close scrutiny given Comstock's inspectors during the employment of Mr. Mathis and the other two inspectors may have had adverse implications for morale.34/

However, the difficulties have not adversely impacted the qual-ity of Comstock's inspections during this period.35/

j The Bower and Riley Affidavits show that Mr. Mathis has not identified specific hardware or procedural problems calling into question Comstock's program or the safety of the plant.

! The cable tray photographs mentioned in the newspaper article are attachments to a nonconformance report generated by Mr.

Mathis, which has since been closed out. The photographs did not involve a " typical" construction problem, as alleged.36/

Mr. Mathis' more general concerns about cable tray drawings problems are not uncommon, given the complexity of the electri-cal area."32/ While CEI is continuing its investigation of 33/ Riley Affidavit, 18.

34/ Riley Affidavit, 8; Bower Affidavit, H20.

35/ Riley Affidavit, 18.

36/ Bower Affidavit, 117; Riley Affidavit, 111.

32/ Bower Affidavit, 118. See Partial Initial Decision at 46 (noting that nuclear electrical work is "particularly complex,"

(Continued Next Page) t-

some of the details provided in CEI's meeting with Mr. Mathis, its investigations to date have not. revealed quality breakdowns or unsafe plant conditions.3g/

C. Mr. Balass' Concerns Have Been Auswered, And Do Not Present Significant Safety Issues At the outset, we note that CEI has now addressed to Mr.

Balass' satisfaction the two specific concerns detailed in the November 28, 1983 Plain Dealer interview with Mr. Bala s and raised by Mr. Balass in his meeting with CEI following the interview.32/ The two issues, relating to wiring in diesel generator panels, and wiring in motor control panels, were both appropriately documented and addressed under Comstock's and CEI's QA/QC programs. The motor control wiring issue was docu-4 mented by another Comstock inspector, and has been closed out.40/ In any case, to further respond to Mr. Balass' concern, CEI conducted 100% re-inspections of the areas questioned by Mr. Balass.41/ The diesel generator electrical (Continued) involving "many attributes that require inspection" and "many opportunities for error to occur," and that tha construction difficuities identified at Perry "are not very unusual.")

3@/ Ri ey Affidavit, 113.

39/ Riley Affidavit, Attachment 1.

40/ Bower Affidavit, 124-25; Riley Affidavit, 115.

! 41/ Riley Affidavit, H15.

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issue identified by Mr. Balazs involved overlapping juris-diction with GE, and was properly documented and tracked under Comstock's, GE's, and CEI's programs. Mr. Balazs himself drafted inspection reports and nonconformance reports covering the items, and CEI subsequently filed a report under 10 C.F.R.

$50.55(e) covering the items of concern.42/ There is no evi-dence of Mr. Balazs' having been improperly restrained from documenting these problems, or of Comstock " pushing out" Mr.

Balazs (Mr. Balazs voluntarily resigned from Comstock, and was not terminated).43/ During OEI's meeting with Mr. Balazs, Mr.

Balazs raised several other issues of lesser concern, one of ,

which (regarding the bending of wires found at the end of elec-trical penetrations) was confused by the November 28, 1983 Plain Dealer story. CEI is following up on these remaining items to assure that no safety problems or QA/QC deficiencies are raised.44/

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D. Conclusions Reached By CEI Following Its Investigations Based on meetings with the three inspectors, and investi-gations of the inspectors' concerns, CEI's senior QA/QC 42/ Bower Affidavit H26-29; Riley Affidavit, 116 and Attach-ment 2.

43/ Bower Affidavit, 123.

44/ Riley Affidavit, 1H14, 17.

officials "have not found in our investigations to date any evidence of either undocumented safety prchlems; serious QA/QC procedural errors; " harassment" or " intimidation" of inspectors; or improper decisions in connection with the dis-charge of inspectors."45/ CEI's follow-up has included interviews with other Comstock inspectors.46/ Mr. Riley attributes many of the inspectors' complaints to " communication problems between the inspectors and their co-workers and super-visors," which, in an organization of the size and complexity 1

of the Perry organization are not unexpected."47/

Thus, Comstock and CEI have thoroughly investigated all areas of the three inspectors' concerns. No safety issue, let alone, significant safety issue, has been identified. Under the second test applicable to motions to reopen, OCRE's Motion must be rejected.

J 45/ Riley Affidavit, 518. ,

46/ Riley Affidavit, 13.

4 47/ Riley Affidavit, 118.

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III. THE THREE INSPECTORS' ALLEGATIONS, CONSIDERED IN THE LIGHT OF APPLICANTS' RESPON' 7E AFFIDAVITS, DO NOT CAST DOUBT ON THE CONCLUSIONS PREVIOUSLY REACHED UNDER ISSUE #3 The Board has consxdered extensive evidence produced by knowledgeable and candid witnesses 48/, and has found "that there are no quality assurance deficiencies that seriously call into question applicant's ability to control its electrical contractor, its commitment to the quality of its plant, or the safety of any plant component."49/ As the Board has noted, "The construction of Perry is a massive task."50/ The safe design and construction of the plant requires cooperation and close interaction among hundreds of inspectors and thous' ands of craft personnel. Disagreements and negative perceptions, re-sulting from communication failures, are inevitable.51/ In this context, it should not he surprising that former inepectors, two of whom were terminated by their management for cause, would retain certain questions about the complex program in which they were engaged. When such questions arise, it is essential to consider all relevant facts which bear on the questions raised. Applicants' Affidavits set forth such an 48/ Partial Initial Decision at 3.

49/ Id. at 3.

50/ Id. at 3.

,5_1/ Riley Affidavit, S18.

analysis, and conclude that the inspectors have not identified i

any unsafe conditions at the plant, or sericus procedural weak-nesses in Comstock's or CEI's QA/QC program. There is, there-fore, nothing to cause the Licensing Board to question its previous conclusions as set forth in the Partial Initial Deci-sion. Under the third test applicable to motions to reopen, OCRE's Motion must be rejected.

IV. CONCLUSION For all the above reasons, Applicants respectfully request th~, Licensing Board to deny the Motion.

Respectfully submitte'd, SHAW, PITTMAN, POTTS & TROWBRIDGE f l By: Eff4ILBERG, POIC -

. C '. U JAY E.

HARRY . GLASSPIEGEL Counsel fo Applicants 1800 M Street, N.W.

Washington, D.C. 20036 (202) 822-1000 f

DATED: December 19, 1983

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